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Madhya Pradesh High Court · body

2011 DIGILAW 1282 (MP)

Abdul Rehman v. State of M. P.

2011-11-11

G.D.SAXENA

body2011
JUDGMENT 1) This revision petition under Section 397/401 of Cr. P.C. has been preferred by the petitioner by the petitioner-accused being aggrieved by an order dated 19th August, 2011 in Sessions Case No. 25/11 by the First Additional Sessions Judge, Guna (M.P.), framing thereby charges against him for commission of offence punishable under Sections 302/34 and 301/34 of IPC. (2) The facts necessary for the disposal of this revision are that on 6-12-2010 at Town of Raghogarh, District Guna, one Deepak Soni, s/o Babulal Soni was reported to be missing from his house. Said report was recorded in Rojnamcha of the police station. During search on 8-12-2010, the dead body of Deepak Soni in a gunny bag was found under/beneath of culvert of ITI at Raghogarh. Accordingly, a Marg report was registered. During inquiry, it is gathered that the petitioner along with other accused persons committed murder of missing Deepak Soni and caused the evidence of offence to be disappeared with an intention to suppress the real culprit from legal punishment. Accordingly, the petitioner was arrested and after investigation, the charge-sheet was filed against him and other accused-persons before the criminal Court. On committal, the charges were framed by the trial Court against him by the order impugned, hence, this revision. The contention of the learned counsel appearing for the petitioner is that the impugned order framing alleged charges against the petitioner is illegal, arbitrary and against the principles of law, hence same is liable to be quashed. It is contended that the learned trial Court ignored the fact that none of the witnesses whose statements were recorded by the Investigating Officer had stated about direct or indirect involvement of the petitioner in the crime. It is further submitted that in the Memorandums of other accused-persons recorded under Section 27 of the Evidence Act by the Investigating Officer, no one had named against the petitioner. It is contended that the trial Judge on the basis of surmises and conjunctures framed the charges against the petitioner. Hence, in the light of the aforesaid submissions, it is prayed that by allowing the revision petition the impugned order be set aside and the petitioner be acquitted of the offence. It is contended that the trial Judge on the basis of surmises and conjunctures framed the charges against the petitioner. Hence, in the light of the aforesaid submissions, it is prayed that by allowing the revision petition the impugned order be set aside and the petitioner be acquitted of the offence. In support, reliance is placed on the decisions in the cases of Noorul Huda Maqbool Ahmed v. Ram Deo Tyagi(2011)3 SCC (Cri) 31 : (AIR 2011 SC (Cri) 1605 : 2011 Cri LJ 4264), Yogesh alias Sachin Jagdish Joshi v. State of State of Maharashtra (2008) 10 SCC 394 (Para 60) : ( AIR 2008 SC 2991 : 2008 Cri LJ 3872), State of (NCTE) Delhi v. Navjot Singh Siddhu (2005) SCC (Criminal) 1715 : ( AIR 2005 SC 3820 : 2005 Cri LJ 3950) and Tanvi Ben Pankaj Kumar Divetia v. State of Gujarat (1997 SCC (Cri) 1004 : ( AIR 1997 SC 2193 : 1997 Cri LJ 2535). (3) The learned Panel Lawyer for the respondent/State, on the other hand, supported the impugned order of framing charge and prayed for dismissal of the revision. (4) Heard the learned counsel for the parties and also perused the order passed by the trial Court as well as the documents on record. The question for consideration in this case is whether the impugned charge was framed by the trial Court after finding prima facie case for proceeding against the petitioner in the light of the charge-sheet papers and the relevant provisions of law. (5) In the case of Noorul Huda Maqbool (AIR 2011 SC (Cri) 1605 : 2011 Cri LJ 4264) (supra), the Apex Court held :- "The law on the subject is now well- settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya, (1990) 4 SCC 76 : ( AIR 1990 SC 1962 : (1990 Cri LJ 1869), that at Sections 227 and 228 stage, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction (Para 36)." (6) The Apex Court also made the observations in the case of Yogesh ( AIR 2008 SC 2991 : 2008 Cri LJ 3872) (supra) to the following effect:- "It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. (See : State of Bihar v. Ramesh Singh ( AIR 1977 SC 2018 : 1977 Cri LJ 1606) and Prafulla Kumar Samal ( AIR 1979 SC 366 : 1979 Cri LJ 154) (supra). The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. (See : State of Bihar v. Ramesh Singh ( AIR 1977 SC 2018 : 1977 Cri LJ 1606) and Prafulla Kumar Samal ( AIR 1979 SC 366 : 1979 Cri LJ 154) (supra). Further, in the case of P. Vijayan v. State of Kerala ( AIR 2010 SC 663 : (2010 Cri LJ 1427), it is held :- "If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." (7) The scope of Section 227 of the Code was considered by this Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : ( AIR 1977 SC 2018 ) : (1977 Cri LJ 1606), wherein this Court observed as follows :- "...........Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the intial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused." (8) In the case of R. S. Mishra v. State of Orissa ( AIR 2011 SC 1103 : (2011 Cri LJ 1654), it is held :- "As seen from Section 227 above, while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the 'consideration' under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed 'after such consideration' and therefore, that consideration must be reflected in the order. It is also to be noted that a discharge order is passed on an application by the accused on which the accused and the prosecution are heard. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulder of the Judge. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulder of the Judge. Therefore, on the analogy of a discharge order, the Judge must give his reasons at least in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court. It will be able to know as to why a charge was dropped or diluted." On perusal of the case diary statement of Hari Om Soni, brother of deceased Deepak Soni, it is noted that Smt. Zubeda Bani accused and her brother Abdul Rehman (petitioner herein) had by pledging their gold ornaments and bearer cheques borrowed the money on credit basis. It also appears from the prosecution evidence that the murder of Deepak Soni was done in the house of Zubeda Bano and her sons at Raghogarh. The witnesses also mentioned in their case diary statements that the petitioner who was the brother of co-accused Zubeda Bano was also present in the house of co-accused. It is true that in the case in hand there is no eye-witness and the case depends totally on the circumstantial evidence but this aspect of the matter cannot be gone into at this stage. Each and every evidence which may connect the accused at the stage of charge cannot be separately valued. If from entire evaluation of the evidence collected during investigation and placed before the trial Judge, involvement of the accused in the incident prima facie appears, the charges should be framed. At this stage, each and every circumstantial link cannot be examined and face value of each and every link cannot be examined by the trial Judge. In the light of the above discussions of facts and, the settled principles of law, it establishes clearly that here a strong suspicion appears against the petitioner-accused. No illegality appears to have been committed in the impugned order by the trial Judge so as to warrant interference by this Court, under revisional jurisdiction. In the light of the above discussions of facts and, the settled principles of law, it establishes clearly that here a strong suspicion appears against the petitioner-accused. No illegality appears to have been committed in the impugned order by the trial Judge so as to warrant interference by this Court, under revisional jurisdiction. (9) Resultantly, this revision petition fails and is hereby dismissed. Petition dismissed.